Com. v. Lambert, N. ( 2016 )

J-S26025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHAN LAMBERT
Appellant No. 430 EDA 2015
Appeal from the Judgment of Sentence Entered January 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0013527-2013
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 17, 2016
Appellant, Nathan Lambert, appeals from the judgment of sentence
imposing an aggregate six to twelve years of incarceration followed by five
years of probation for unlawful possession of a firearm and possession of a
firearm with an altered manufacturer’s number.1 We vacate and remand.
Appellant pled guilty to the aforementioned offenses on April 30,
2014.2 The trial court sentenced Appellant in absentia on January 22, 2015.
Appellant filed this timely appeal, raising two issues:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6105 and 6110.2, respectively.
2
Possession of a firearm by persons not to possess, 18 Pa.C.S.A. § 6105, is
a felony in the second degree. 18 Pa.C.S.A. § 6105(a.1).
J-S26025-16
1. Did the lower court impose an illegal sentence above the
statutory maximum for a violation of Section 6105 of the
Uniform Firearm Act, 18 Pa.C.S.A. § 6105, a felony of the
second degree, by imposing a sentence of five to ten years[’]
incarceration and five years[’] probation?
2. Did the lower court err in sentencing [A]ppellant in absentia
where the Commonwealth failed to prove that [A]ppellant
intentionally failed to appear after proper notice and where
the lower court failed to weigh the specific circumstances of
the case?
Appellant’s Brief at 3.
Appellant first argues the trial court imposed an illegal sentence for
Appellant’s violation of § 6105, a second-degree felony. 18 Pa.C.S.A.
§ 6105(a.1)(1). A second-degree felony carries a maximum sentence of ten
years of incarceration. 18 Pa.C.S.A. § 1103(2). The written judgment of
sentence indicates that the trial court imposed five to ten years of
incarceration followed by five years of probation for Appellant’s violation of
§ 6105. The legality of a sentence presents a question of law, for which our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Lomax, 8 A.3d 1264, 1268 (Pa. Super. 2010).
The sentence for Appellant’s § 6105 conviction is unlawful, as
Appellant potentially could serve 15 years of punishment for a crime with a
ten-year statutory maximum. 42 Pa.C.S.A. § 9754(a) (“In imposing an
order of probation the court shall specify at the time of sentencing the length
of any term during which the defendant is to be supervised, which term
may not exceed the maximum term for which the defendant could be
confined[.]”) (emphasis added); Commonwealth v. Crump, 995 A.2d
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1280, 1283 (Pa. Super. 2010) (noting that the total length of a sentence
split between incarceration and probation cannot exceed the statutory
maximum), appeal denied, 13 A.3d 475 (Pa. 2010). The sentencing
transcript and the trial court’s Pa.R.A.P. 1925(a) opinion indicate that the
trial court intended to sentence Appellant to five to ten years of incarceration
for his § 6105 violation without a subsequent period of probation. N.T.
Sentencing, 1/22/15, at 10; Trial Court Opinion, 9/3/15, at 3. The trial
court intended to sentence Appellant to one to two years of incarceration
followed by five years of probation for the § 6110.2 violation. Id. The
written judgment of sentence, in an apparent error, attached five years of
probation to both sentences § 6015 sentence rather than the § 6110.2
sentence. Despite the trial court’s statements at sentencing, the language
of the written judgment of sentence controls. See Commonwealth v.
Unger, 462 A.2d 259, 260 (Pa. Super. 1983) (noting that oral statements at
sentencing not incorporated in the written judgment are not part of the
judgment of sentence).
In conclusion, we must vacate the illegal sentence imposed for
Appellant’s violation of § 6105. Since that sentence was part of a
consecutive sentencing scheme, and our result alters the aggregate
sentence, we will vacate the entire judgment of sentence and remand so
that the trial court can issue a written sentencing order in accordance with
its intentions. See Commonwealth v. Ruffin, 16 A.3d 537, 544 (Pa.
-3-
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Super. 2011); Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super.
2006), appeal denied, 946 A.2d 687 (Pa. 2008).
As our disposition of Appellant’s first argument requires a new
sentencing proceeding, Appellant’s second argument is moot.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2016
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